K. Unnikrishnan S/o A. Krishnan Nair v Government of Kerala represented by Chief Secretary, and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 25TH DAY OF NOVEMBER 2019 / 4TH AGRAHAYANA, 1941** ## **OP(KAT).No.196 OF 2014(Z)** **AGAINST THE ORDER/JUDGMENT IN TA 395/2012 DATED 03-03-2014 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/S:** **K.UNNIKRISHNAN S/O.A.KRISHNAN NAIR, KARTHIKA, POTHAZHAKKAD P.O., THRISSUR, KERALA** **BY ADV. SRI.M.SREEKUMAR** ## **RESPONDENT/S:** - **1 GOVERNMENT OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, KERALA 695 001** - **2 THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM KERALA 695 601.** - **3 THE PRINCIPAL SECRETARY TO GOVERNMENT VIGILANCE (A) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM KERALA 695 001** - **4 THE DIRECTOR GENERAL OF POLICE THIRUVANANTHAPURAM, KERALA 695 001** - **5 THE ACCOUNTANT GENERAL (A AND E) KERALA, THIRUVANANTHAPURAM, KERALA 695 001** _**OP(KAT).196/14**_ 2 **6 KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM, KERALA 695 004** ## **OTHER PRESENT:** **SRI.ANTONY MUKKATH, SR.GP.** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 25.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**OP(KAT).196/14**_ 3 ## **K.VINOD CHANDRAN & V.G.ARUN, JJ.** ----------------------------------------------OP(KAT).No.196 of 2014 ----------------------------------------------Dated this the 25[th] day of November, 2019 ## **JUDGMENT** ## _**Arun, J.**_ The petitioner, while working as Circle Inspector of Police, was arrayed as an accused in a vigilance case. After investigation, the Vigilance And Anti Corruption Bureau, recommended for initiation of disciplinary proceedings against the petitioner, instead of criminal prosecution. Accordingly, the Government ordered disciplinary enquiry by the Vigilance Tribunal. By Exhibit P1 report dated 5.2.2003, the Vigilance Tribunal found the petitioner not guilty of the charges framed against him and did not recommend any punishment. The reason for such conclusion, as discernible from Exhibit P1, is as under; _“26. Therefore, the entire evidence on record is leading to the inference that there is absolutely no reliable and clinching evidence to prove the fact of acceptance of bribe by Accused Officers 1 and 2 personally or Accused_ _**OP(KAT).196/14**_ 4 _Officer.1 through Accused Officer.2. With the available evidence it is not just and proper to find that the Accused Officers have accepted any bribe at any time for any purpose from anybody. The evidence adduced is highly insufficient find in favour of the prosecution. Therefore, I have no hesitation to come to the conclusion that the prosecution has not succeeded even to probabalise a case against the Accused Officers. For the reasons stated above, I find these points against the prosecution and in favour of the Accused Officers.”_ 2. The Government decided to reject the findings and recommendations of the Vigilance Tribunal and decided to impose the punishment of reduction in rank to the lower post on the petitioner. A show cause notice was issued to the petitioner seeking his explanation to the proposed punishment. Not being satisfied with the petitioner's explanation, the Government, after consultation with the Public Service Commission, issued Exhibit P2 order dated 18.9.2004, directing permanent reduction of the petitioner's pension at the rate of Rs.500/- per month, the petitioner having retired from service on 30.11.2003. By Exhibit P4, the Accountant General directed to adjust the excess amount of Rs.19,219/- paid towards commuted value of pension from the DCRG due to the petitioner. The petitioner filed WP(C).No.11032 _**OP(KAT).196/14**_ 5 of 2005 aggrieved by Exhibit P2 and consequential orders. The writ petition was subsequently transferred to the Kerala Administrative Tribunal and numbered as T.A.No.395 of 2012. 3. Before the Tribunal the petitioner contended that Exhibit P2 order issued under Rule 3 of Part III KSR was invalid and unenforceable, without finding that any pecuniary loss had been caused to the Government. The other contention raised was against the illegal manner in which the Government had differed from the findings of the Vigilance Tribunal, which were rendered after careful consideration of the available evidence. 4. The respondents contended that on examination of the findings of the Vigilance Tribunal, with reference to the records of the case, the Government had disagreed with the conclusions and tentatively decided to impose the punishment of reduction in rank. That, a show cause notice was issued to the petitioner along with copy of the report of the Vigilance Tribunal and his explanation obtained. The matter was referred to the Public Service Commission and on its advice, decision was taken to impose the penalty of reduction in pension at the rate of Rs.500/per month. It was contended that differing from the findings of _**OP(KAT).196/14**_ 6 the Vigilance Tribunal, if need be, was the Government's prerogative. The decision in _**Mathew v. State of Kerala**_ [1989 (1) KLT 88] was relied on in support of the contention. 5. The Tribunal repelled the first contention, holding that, for action under Rule 3 of Part III KSR, pecuniary loss is not necessary. In answer to the second contention, the Tribunal referred to the show cause notice dated 9.7.2003 (which surprisingly did not form part of the records, but has now been produced as Annexure D in this original petition) and held that the Government had applied its mind to the facts of the case and had decided to overrule the findings in the enquiry report. The portion in the show cause notice (Annexure D) extracted by the Tribunal, is as under: _“Government have examined the report of the Vigilance Tribunal. According to the Vigilance Tribunal the evidence available were not sufficient enough to find that the Accused Officers accepted bribe from the witnesses. He therefore concluded the case in favour of the Accused Officers. It is seen that the Vigilance Tribunal came to such a conclusion mainly on the depositions of PW5, PW6 & PW7. As a matter of fact those witnesses turned hostile during the enquiry by the Vigilance Tribunal. However_ _**OP(KAT).196/14**_ 7 _there were recordical evidences to show that the depositions of the above witnesses were not true to facts. In the circumstances, Government are not inclined to accept the recommendations of the Vigilance Tribunal.”_ 6. After reading the above extracted portion, we are bemused by the casual manner in which the Government had differed with the findings of the Vigilance Tribunal. A perusal of Exhibit P1 report of the Vigilance Tribunal shows that the Tribunal had analysed the evidence tendered by each prosecution witness before reaching the finding that there was no reliable and clinching evidence to prove the fact of acceptance of bribe by the accused officers. The Tribunal found that with the available evidence, it was not just and proper to hold that the accused officers had accepted any bribe at any time, for any purpose, from anybody. Such definite and authoritative finding of the Tribunal was brushed aside with a perfunctory statement that, apart from the depositions of Pws 5, 6 and 7 who had turned hostile, there were recordical _(sic)_ evidences to show that the deposition of the above witnesses were not true to facts. No mention is made regarding the documentary evidence that was available with the Government to differ from the findings of the _**OP(KAT).196/14**_ 8 Vigilance Tribunal. As a matter of fact, the only exhibit marked in evidence was the marked portion of the statement of PW7. Therefore, even though, as held in _**Mathew's case**_ , the Government can differ from the findings of the Vigilance Tribunal, it should be for valid reasons and not on whimsical casual statements as in the case at hand, lest the entire exercise before the Vigilance Tribunal be rendered farcical. 7. For the aforementioned reasons, we are unable to uphold the findings in Annexure A order. The petitioner having retired from service on 30.11.2003, cannot be put to further prejudice due to the tardy manner in which the Government had issued Exhibit P2 order. We are not directing the Government to reconsider the matter and take a reasoned decision on the recommendation of the Vigilance Tribunal, which we would have done, but for the petitioner's retirement. In the result, we allow the original petition, setting aside Annexure A order of the Tribunal and quash Exhibits P2, P3 and P4. The respondents are directed to disburse the entire amount of eligible monthly pension to the petitioner with arrears, along with other terminal benefits, if any withheld, within a period of _**OP(KAT).196/14**_ 9 three months from the date of receipt of a copy of this judgment, failing which the amount will carry 6% interest from the date it became due. Sd/- **K.VINOD CHANDRAN JUDGE** Sd/- **V.G.ARUN JUDGE** _vgs_ **x** _**OP(KAT).196/14**_ 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE ORDER IN TA NO.395/2012 (WPC NO.11032/2005) DATED 3/3/2014 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM ANNEXURE B TRUE COPY OF THE WRIT PETITION(C) NO.11032/2005 FILED BY PETITIONER BEFORE THIS HON'BLE COURT DATED 31/3/05 TRANSFERRED AS TA NO.395/2012 BEFORE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM ANNEXURE C TRUE COPY OF THE COUNTER AFFIDAVIT DATED 22/8/06 FILED BY RESPONDENTS 1 TO 4 IN WPC NO.11032/05 ANNEXURE D COPY OF THE SHOW CAUSE NOTICE NO.12679/A1/01/Vig. DATED 9.7.2003. EXHIBIT P1 TRUE COPY OF FINDINGS RECORDED (REPORT) BY VIGILANCE TRIBUNAL, KOZHIKODE IN EC NO.9/2002 DATED 5/2/2003 EXHIBIT P2 TRUE COPY OF THE ORDER G.O.(RT) NO.287/04/VIG. DATED 18/9/04 OF THE GOVERNMENT OF KERALA EXHIBIT P3 TRUE COPY OF THE ORDER NO.A6/42359/2003 DATED 3/1/2005 OF THE INSPECTOR GENERAL OF POLICE EXHIBIT P4 TRUE COPY OF LETTER NO.P-05/REVN/236/GE/0405 DATED 22/2/05 OF THE 5TH RESPONDENT EXHIBIT P5 TRUE COPY OF NON-LIABILITY CERTIFICATE NO.A6-42359/2003 ISSUED IN FAVOUR OF THE PETITIONER DATED 14/2/2005**